Marshals Can’t Amend Discrimination Claim

(CN) – A group of black deputy U.S. marshals cannot amend their complaint alleging race discrimination against their employer, a federal judge ruled. The litigation history extends back to July 1994 when non-party U.S. Deputy Marshal Matthew Fogg filed an EEOC complaint on behalf of more than 50 black U.S. Marshals Service employees. Though it repeatedly dismissed the complaint, the EEOC made an about face in July 2012, granting Fogg class certification and ordering an administrative judge to hear the claims. In the meantime, David Grogan, Herman Brewer, and Fayette Reid sought to amend a separate class action complaint regarding race discrimination against the U.S. Marshals Service in federal court. The amendment would include expanding the liability period to begin in 1994. James Brooks joined Grogan, Brewer, and Reid as a plaintiff in their complaint. However, he sued only for individual claims of race discrimination. The marshals argued that Fogg’s complaint to the EEOC satisfied their own obligation to exhaust administrative remedies under Title VII of the Civil Rights Act of 1964. Not so, ruled U.S. District Judge Henry Kennedy Jr., who denied in part the marshals’ motion to amend their complaint in September 2011. The vicarious exhaustion doctrine does not apply to the marshals, since Fogg did not take part in their federal complaint, Kennedy determined. “In other words, Judge Kennedy refused to allow plaintiffs ‘to piggyback’ off of Fogg’s EEO charges when Fogg was not named in the action currently before the court,” U.S. District Judge Barbara Rothstein noted in an order issued Friday. (page 4) Rothstein denied the marshals’ motion to reconsider Kennedy’s ruling in the 9-page order. The marshals said Fogg was seeking to amend his complaint and include Brewer and Reid as parties, but until the administrative judge rules on the amendment, Rothstein refuses to reconsider vicarious exhaustion. Rothstein denied as moot the marshals’ motion for reconsideration based on the continuing violations doctrine, which she says Kennedy’s order did not address. As for James Brooks, Rothstein found that he failed to wait the mandatory 180 days from the time he complained to the EEOC before filing civil claims. Therefore, Rothstein refused to consider his request to amend his claims. Rothstein gave the marshals two weeks to raise any outstanding arguments, as the Fogg class action continues to develop.